David Alan Wilson and Kenneth C. Porter, both of Greenville,
for Respondent-Appellant.

PER CURIAM: This is a cross-appeal from
a divorce action. William Barry Chisholm, the husband, argues the family court
erred in: (1) declining to grant him a divorce on the ground of adultery, (2)
granting custody of the parties’ minor child to Susan Elaine Chisholm, the wife,
(3) refusing to expand his visitation rights, (4) ordering him to bear sole
financial responsibility for the child’s private school expenses, (5) finding
a portion of an IRA was marital property, and (6) declining his request for
attorney’s fees and awarding attorney’s fees to the wife. The wife argues the
family court erred in awarding the husband sole ownership of the marital home
and in refusing to increase the marital estate by $10,000.00. We affirm in
part, reverse in part, and remand.

FACTS

The parties married in 1979.Both
were employed and had limited assets, including retirement funds. Before the
marriage, the husband purchased a home that would become the marital residence.
Two children were born of the marriage, one of whom was still a minor at the
time of the final hearing.

In the spring of 2000, the wife reacquainted
herself with a male friend from high school. For several months, the wife,
either directly or through the parties’ older child, communicated with this
individual through letters, electronic mail, and telephone. Eventually, the
two revealed their mutual and long-standing affections for each other and, in
August 2000, arranged a clandestine meeting at a motel, where they engaged in
sexual relations with each other.

For months, the wife concealed her adultery from
the husband; however, tensions arose in the parties’ relationship, and she began
acting erratic and unstable. In October 2000, the wife was admitted to the
hospital, where she was diagnosed with recurrent major depression and placed
on medication. After her release from the hospital, the parties resumed living
together; however, they never really reconciled and tensions escalated.

In July 2001, the husband filed for divorce on
the ground of adultery. [1] He also sought custody of the
parties’ younger child and equitable apportionment of the marital property.
In her answer and counterclaim, the wife admitted adultery and sought custody.
At trial, both parties amended their pleadings to seek a no-fault divorce on
the ground of a one year separation; however, the husband did not abandon the
fault ground of adultery.

After hearing evidence on the contested
issues, the family court granted a no-fault divorce. The wife received custody
of the parties’ minor child, and the marital property was divided equally between
the parties. The husband received liberal visitation and was ordered to pay
child support, including all private school expenses. The family court granted
the husband a special interest in the marital home and awarded attorney’s fees
to the wife. Both parties unsuccessfully filed post-trial motions under Rule
59(e) of the South Carolina Rules of Civil Procedure, and this appeal followed.

LAW/ANALYSIS

The Husband’s Appeal

1. The husband argues the family court erred
in granting a no-fault divorce instead of a divorce on the ground of adultery.
We disagree.

“[A] divorce is not a prize given in recognition
of a victory in a contest.” [2] Here, assuming without deciding
that the wife’s adultery was the immediate cause of the breakup of the marriage,
the grant of a no-fault divorce did not prejudice the husband. The wife had
waived her right to seek alimony, and the family court stated it considered
the wife’s admitted adultery and found her misconduct did not affect the economic
condition of the parties. [3]
Furthermore, although the husband may be correct that the family court was able
to grant a divorce on the ground of a one-year separation only because docket
constraints prevented this matter from being heard at an earlier date, we fail
to see how this circumstance would entitle him to a divorce on a fault ground.
Finally, the husband does not suggest that spiritual or other considerations
proscribe him from obtaining a divorce on the ground of a one-year separation.

2. Second, the husband contends the trial court erred
in failing to award him custody of the parties’ minor child. We find no reason
to reverse the family court’s decision.

“The welfare of the child and what is in his/her
best interest is the primary, paramount and controlling consideration of the
court in all child custody controversies.” [4] “However, where evidence is
disputed [in a family court matter], the appellate court may adhere to the findings
of the trial judge, who saw and heard the witnesses.”
[5] In particular, an appellate court “should be reluctant to substitute
its own evaluation of the evidence on child custody for that of the trial court.”
[6] Our broad scope of review does not relieve an appellant of the burden
to convince this court that the family court erred in its factual findings and
conclusions. [7]

Here, the family court heard extensive testimony
on the custody issue from the parties, mental health professionals, and the
guardian ad litem. Mental health professionals testified that, although the
child would be fine with either parent, the wife had been his primary caregiver.
We hold the family court properly considered evidence on the strengths and weaknesses
of each parent and therefore affirm the finding that the child’s best interests
would be served by placing him in the wife’s custody.

3. Alternatively, the husband argues that if the
family court’s decision regarding custody is affirmed, he is entitled to more
extensive visitation. We agree.

“[V]isitation is addressed to the broad discretion
of the family court.” [8] Nevertheless, as with child custody, the welfare
and best interests of the child are the primary considerations in determining
visitation. [9]

The family court initially granted the husband
visitation in accordance with “Judge Brown’s Standard Visitation Order,” which
was attached to and incorporated into the appealed order. After the husband
moved to alter or amend the judgment, the family court amended the order as
follows: “[The husband] shall have such additional visitation with the parties’
minor child, as the parties may agree.” Notwithstanding this revision, we hold
the evidence indicates the child’s best interests would be served by granting
the husband specified visitation over and above what he would receive in a standard
visitation order. The husband had maintained an active role in the child’s
life. Furthermore, although the wife expressed a desire that the husband have
liberal visitation with the child, it was evident that the parties did not communicate
well. We therefore remand the issue of visitation to the family court with
directions to grant the husband liberal visitation at specified times.

4. We agree with the husband that the
family court erred in ordering him to bear sole financial responsibility for
the child’s private school expenses without making an adjustment in his child
support obligation.

The husband maintained the child should
continue to attend private school and testified that he would “do whatever it
takes” to enable the child to maintain this privilege. The wife, however, did
not believe that private schooling was necessary. We find it significant that
the family court agreed with the husband that it was in the child’s best interest
to remain in private school and that the wife did not appeal this finding.
Moreover, the record supports this determination. In particular, we note (1)
the child attended this particular school all his life and was already in high
school when this case came to trial; and (2) the child had been diagnosed with
ADHD, making a private school, with its smaller classes and more individualized
attention, a preferable choice to a public school.

The child support guidelines require
the parties to share in the support of a child proportionate to the income earned
by each of them. [10] In addition,
the regulations expressly provide that payment of education expenses can be
a possible reason for deviation from the child support guidelines.
[11] We therefore reverse the child support decision and remand this matter
to the family court with instructions either to allocate the private school
expenses between the parties on a pro rata basis or in the alternative to grant
the husband a downward adjustment in his support obligation if he is ordered
to pay more than his pro rata share of these expenses.

5. The husband next argues $35,357 of
an IRA was nonmarital property and thus improperly included in the marital estate.
We agree.

Property acquired by either party prior
to the marriage is generally nonmarital property.
[12] In some circumstances, however, nonmarital property may be transmuted
into marital property if (1) it becomes so commingled with marital property
as to be untraceable; (2) it is jointly titled; or (3) it is utilized by the
parties in support of the marriage or in some other manner so as to evidence
an intent by the parties to make it marital property. [13] “Transmutation is a matter of intent to
be gleaned from the facts of each case, and the spouse claiming transmutation
must produce objective evidence showing that, during the marriage, the parties
themselves regarded the property as the common property of the marriage.”
[14]

The husband testified in detail about
the retirement assets he owned at the time of the marriage, the manner in which
they were invested, the records he maintained during the marriage, and the mathematical
computation of the premarital component of his IRA, with growth on that portion
during the marriage. Moreover, notwithstanding the commingling and the fact
that the husband managed the wife’s retirement funds as well as his own, we
hold the wife failed to make a primafacie case that the parties
themselves regarded the funds as the common property of the marriage.
[15]

Finally, the husband argues the family
court erred in awarding attorney’s fees to the wife and in denying attorney’s
fees to him. In view of the beneficial results obtained by the husband in this
appeal, we remand this issue to the family court for further consideration. [16]

The Wife’s Appeal

1. The wife argues
the family court erred in awarding the husband sole ownership of the marital
home after finding the home was transmuted into marital property. We disagree.

“A family court may
grant a spouse title to the marital home as part of the equitable distribution.”
[17] The family court, in dividing the marital assets, “must give weight
in such proportion as it finds appropriate to all of the following factors [including]
the desirability of awarding the family home as part of [the] equitable distribution.”
[18]

On review, this court
looks to the fairness of the overall apportionment, and if the end result is
equitable, the fact that this court might have weighed specific factors differently
than did the trial court is irrelevant. [19] This court will affirm an
equitable apportionment if it is apparent that the family court was cognizant
of the statutory factors. [20]

The family court found
the husband had a “special equity” in the marital residence because he paid
a $25,000 down payment on the home before the marriage, had funds available
to pay the full purchase price, and used those funds to pay the debt within
five years. Although the residence was valued at $295,000, the total equity
was only $75,500. In addition, the husband assumed sole responsibility for
all indebtedness under the order. In view of these factors, we hold the decision
to award ownership of the marital residence to the husband is fair and equitable.

2. The wife also argues the family court
should have included as a marital asset $10,000 that the husband withdrew from
a marital account shortly before commencing this litigation. We disagree.
The wife alleges the funds were withdrawn in contemplation of the divorce action;
however, the husband, although acknowledging that he paid his attorney a retainer
fee of $10,000, never admitted that the money taken from the account was used
for this purpose, suggesting instead that it may have been spent on their child’s
private school tuition. No documentation, such as a cancelled check, was provided
to enable the family court to determine whether or not the husband had improperly
liquidated this asset. Having been provided with no plausible explanation as
to why the wife could not have procured such evidence herself, we are reluctant
to disturb the family court’s refusal to find the funds in dispute are part
of the marital estate. [21]

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.

HEARN, C.J., and GOOLSBY and WILLIAMS,
JJ., concur.

[1] Although the wife confessed her affair and already had her emotional
breakdown, the husband waited until their older child graduated before seeking
a divorce.

[2] Miles v. Miles, 303 S.C. 33, 35, 397 S.E.2d 790, 791 (Ct.
App. 1990); see alsoSmith v. Smith, 294 S.C. 194, 197, 363
S.E.2d 404, 406 (Ct. App. 1987) (rejecting a husband’s contention that he
should have been awarded a divorce on his counterclaim when his wife received
a divorce on the ground of a one-year separation and noting that the granting
of a divorce to the husband on the ground of adultery would not have dissolved
the marriage any more completely).

[3] SeeWoodside v. Woodside, 290 S.C. 366, 374, 350 S.E.2d
407, 412 (Ct. App. 1990) (stating that a spouse’s marital misconduct becomes
important in equitable distribution only when “the conduct . . . is such that
it throws upon the other party marital burdens beyond the norms to be expected
in the marital relationship”).

[11] Seeid. 114-4710B(1) (stating “[e]ducational expenses
for the child(ren) . . . (i.e., those incurred for private, parochial, or
trade schools, other secondary schools, or post-secondary education where
there is tuition or related costs)” can be “[a] possible reason[ ] for deviation”).

[21] SeeCherry v. Thomasson, 276 S.C. 524, 525, 280 S.E.2d
541, 541 (1981) (stating that, notwithstanding the scope of review in an equity
matter, an appellate court is not required “to disregard the findings below
nor ignore the better vantage point the trial judge occupies in determining
witness credibility” and “[t]he burden is upon the appellant to convince this
Court that the trial judge erred in his findings of fact”).